In a landslide vote on Dec. 13, the
Michigan Legislature approved Senate Joint Resolution E,
a landmark property rights ballot initiative. The resolution was informed
by significant technical advice from Mackinac Center Senior Legal Analyst
Patrick J. Wright. Michigan voters will now have the chance to amend the state
constitution in November to prevent key types of eminent domain abuse by state
and local governments.

The
resolution was crafted in the wake of public outrage over last June’s U.S.
Supreme Court decision in Kelo v. New London, which permitted a local government
to seize people’s homes (with "just compensation") and redistribute the land to
private developers in order to improve local tax revenues. The Michigan
resolution was introduced to prevent such takings, as well as takings for
so-called "economic development." But as Wright noted in his September testimony
before a state House committee, existing statutes would readily permit
government officials to effect similar takings by claiming to remedy "blight"
(see Impact, Fall 2005). Following this testimony, state legislators frequently
requested Wright’s technical expertise on the issue, and his views had real
impact.

Stay Engaged

Receive our weekly emails!

email address

As state
Rep. Drolet, who spearheaded passage of SJR E in the state House, observed: "We
all recognized that eminent domain was being abused under the guise of ‘economic
development,’ but Patrick really foresaw that overbroad ‘blight’ takings would
be misused too. His understanding of blight and the differences between state
and federal takings law definitely helped us craft the resolution more
effectively." State Sen. Tony Stamas, who sponsored the resolution, commented,
"Patrick offered valuable input that helped us insure that Michigan’s citizens
would be protected against takings abuse now and in the future."

Others
involved in the bill felt similarly. Lee Schwartz, assistant vice president for
policy and legislation for the Michigan Association of Home Builders, said: "The
information from the Mackinac Center had a major impact on the shaping of this
proposed constitutional amendment. They stood firmly in favor of the private
property rights of Michigan’s citizens during the discussions. Their knowledge
of constitutional law was invaluable." Scott Bullock, who was Susette Kelo’s
attorney during the Supreme Court litigation and who flew to Michigan to consult
and testify in support of SJR E, remarked: "At least the Supreme Court admitted
in Kelo that states could pass laws against the use of eminent domain for
so-called economic development. It’s been great to see so many states take up
that challenge, and Michigan, with significant participation from the Mackinac
Center, is in the vanguard with its 2006 ballot proposal. We were very pleased
to work with the Center during the passage of this initiative through the
Legislature."

If voters
approve the ballot initiative in November, they will achieve a major
constitutional victory for private property rights in Michigan — a victory
forged in part by Wright’s expertise and hard work.

Constitutional Land Management

Of
course, not every battle ends in a conventional victory. But it’s often worth
putting up a tough fight on principle, as the Center did in January by opposing
the state’s unconstitutional and preferential sale of a state property in
Washtenaw County.

The sale was initiated in 2004 and garnered two bids — one
for $25 million from DPG York LLC, a group of developers, and the other for $9
million from Toyota Technical Center USA, a firm courted by state officials. The
land’s market value had been appraised at $11.9 million.

The state
rejected both bids and the Legislature passed Public Act 326, which allowed sale
of the land without competitive bidding, considerations of the property’s market
value or meaningful legislative guidance for state executive agencies, which
were empowered to determine "the best interests of the state" in selling the
property. These and other provisions were openly intended to pave the way for
selling the land to Toyota.

Economically, this was a deeply flawed approach that tells potential investors
that high-profile competitors will receive preferential treatment in the conduct
of state business in Michigan. And as Wright observed in the Center’s Jan. 13
news release, "The state Legislature’s broad, open-ended delegation of authority
to (state executive agencies) to sell the property violated both the
separation-of-powers and due-process clauses of the Michigan Constitution."

Wright’s comments came the day after he filed a "friend of
the court" brief making this argument to the state Court of Appeals, which was
hearing DPG York’s legal challenge to Public Act 326. Gov. Jennifer Granholm had
raised the stakes the same day that Wright filed by requesting the state Supreme
Court to wrest the case from the appeals court and decide it quickly. On Jan.
17, the stakes were raised even further when state Democratic Party Chair Mark
Brewer called on the Center to withdraw its brief and criticized Republican
gubernatorial candidate Dick DeVos for his past support of the Center.

The
Center responded by announcing it stood by the brief. But on Jan. 24, the
Michigan Supreme Court, which had initially overturned the appeals court’s
dismissal of the lawsuit, suddenly ended the case without explanation by ruling
against DPG York and prohibiting all further appeals.

The
court’s order was a surprise and a disappointment, given the fundamental
constitutional and economic issues involved. Nevertheless, as Wright observed
afterward: "The Legislature in this case abdicated its constitutional
responsibilities to executive agencies — something it does often. Changing this
behavior will take time, but it’s a battle worth winning. It’s fundamental to
representative government and to better public policy."

Supreme Court Levee

Indeed,
land policy seems to attract roaming executive agencies that have slipped the
leash. Thus did Wright and three of his Mackinac Center colleagues find
themselves attending oral arguments at the U.S. Supreme Court on Feb. 21 in the
consolidated wetlands cases Rapanos v. United States and Carabell v. United
States Army Corps of Engineers. The legal disputes concern challenges by three
Michigan families and their business associates to the federal government’s
power to regulate wet areas on their properties under the rubric of protecting
"wetlands" — challenges that the Center backed by filing a "friend of the court"
brief with the Supreme Court on Dec. 2.

As Wright
argued in the brief, federal agencies have overstepped their congressional grant
of authority by regulating "wetlands" remote from the nation’s navigable waters.
Moreover, as Wright noted, if the court were to conclude that federal agencies
have not exceeded their legislative mandate, the court would then have to rule
that Congress itself unconstitutionally exceeded its power to regulate
interstate commerce.

The Center has followed the Rapanos case since early 2004,
when Senior Environmental Policy Analyst Russ Harding’s questions about the
dubious "wetlands" status of one of John Rapanos’ properties helped attract
state and national media attention, including pieces in The Wall Street Journal
and The Washington Times (see Impact, Fall 2004). Harding’s knowledge of
wetlands regulatory procedures also provided Wright with a wealth of uniquely
telling information that buttressed the brief’s discussion of the corrosive
effect this federal overreach has had on the balance between state and federal
power.

The Center’s wide-ranging perspectives on the cases
produced numerous media citations in the weeks before the hearing (see Media
Impact, Page 5).
These citations were also spurred by a coordinated media outreach led by
Mackinac Center Director of Communications Christopher F. Bachelder and enhanced
by Communications Specialist Michael D. Jahr and Executive Vice President Joseph
G. Lehman (both Jahr and Lehman, along with Harding and Wright, attended the
Feb. 21 Supreme Court hearing). The Center knew that public education on these
seminal cases was crucial to long-term shifts in public policy.

As Wright observes:
"The Rapanos and Carabell cases are critical to reinvigorating constitutional
limits on federal power. If Congress can regulate every drainage ditch, then
Congress’ control of land use is virtually unlimited. The result would be a body blow to our federalist system of government, and it would leave average
homeowners’ decisions at the mercy of distant and unresponsive federal
bureaucracies."